This weekend, the US government filed documents in two long-running cases (both in California's Northern District) related to National Security Agency (NSA) surveillance. As the New York Times notes, these filings mark the first time the government acknowledged that the NSA "started systematically collecting data about Americans’ e-mails and phone calls in 2001, alongside its program of wiretapping certain calls without warrants." However, the bigger takeaway from the new documents is that the government continues to evoke state secrets privilege—the right to prevent certain, potentially harmful information from being used in court even if it means a case might be dismissed—despite previous rulings against this argument.

"The government seems to be trying to reset the clock to before June 2013 or even December 2005," said Electronic Frontier Foundation (EFF) Legal Director Cindy Cohn in a statement. "But the American people know that their communications are being swept up by the government under various NSA programs. The government's attempt to block true judicial review of its mass, untargeted collection of content and metadata by pretending that the basic facts about how the spying affects the American people are still secret is both outrageous and disappointing."

As the EFF notes, government surveillance activities are discussed publicly by media outlets worldwide and even acknowledged in official presidential press conferences. Despite that, the government's state secrets defense argues that potential documents, which relate to the EFF's claims that the "NSA indiscriminately intercepts the content of communications and their claims regarding the NSA's bulk collection of... metadata," still contain viable state secrets.

“Disclosing or confirming further details about these activities could seriously undermine an important tool—metadata collection and analysis—for tracking possible terrorist plots,” Director of National Intelligence James R. Clapper Jr. wrote in a brief with the filing. Clapper claimed that tactics could be revealed that would “help foreign adversaries evade detection.”

In Jewel v. NSA, a judge ruled against the state secrets claim back in July—before the Snowden revelations. And the new documents available for this case—covering now familiar Al Qaeda threats from 2005, 2006, and 2010 according to NYT—were only released because of a court order from September. Back then, the EFF scored a small victory in the long-running case when Judge Jeffrey S. White ordered the government to unseal declassified materials relevant to NSA surveillance before December 20. The documents included things like exhibits, declarations, and other ex parte submissions, all originally submitted to the court under seal.

Jewel v. NSA dates back to 2008, and it's still proceeding despite plenty of stops and starts. The EFF identifies the fundamental question in the caseas "whether the spying program is legal and constitutional." After its filing in 2008, the government moved to dismiss the case in 2009, a judge in the Northern District of California agreed in 2010, but the Ninth Circuit US Court of Appeals eventually reinstated the case in 2011. The government renewed its attempts to dismiss Jewel v. NSA in 2012, but that argument was rejected earlier this year.

Is there anybody in America that has less credibility that Clapper? After getting the question 24 hours in advance he outright and flagrantly lied to congress. Yet he is still in the same position.

The greatest satirist, the greatest comedic mind or creative writer could not make up something more absurd. The guy just flagrantly lied in front of the whole world. Any other citizen who does that goes to jail.

Yet he is still Director of Intelligence in this fine country. Sickening.

The government's attempt to block true judicial review of its mass, untargeted collection of content and metadata by pretending that the basic facts about how the spying affects the American people are still secret is both outrageous and disappointing."

Funny, when one considers 60 minutes is doing their questions about Snowden to Condalica Rice, and she's arguing Snowden should come home and "face justice". I'm thinking no one heavily involved in this mess is ready for justice.

If snowden had any guts he would've been a whistleblower while being in the states, and not run to give secrets to foreign countries. Hero my ass. He's coward the cowardly chicken.

But you, Oh Keyboard Warrior are a real man, the avatar of courage itself. You joined the NSA, retrieved information necessary for the public to know in order to have a functioning democracy, and released it to the public and awaited trial and/or summary execution in the states, right? I mean, you must have. If not, you'd look like a horse's ass right now.

(This isn't a placeholder comment so that I have time to come up with something clever to say on the first page of comments; I just literally don't know what to say about this $#!+ anymore. It's like a parody that took a joke about a dystopian novel way too seriously.)

There has to be some way for the courts to look at the invocation of state secrets and simply say bullshit and show me the documentation. If you can't provide to a properly screened judge the reason why it is a state secret then the government should not be able to do it.

It's time for the lies to stop and the government and its agents held accountable for their actions.

There has to be some way for the courts to look at the invocation of state secrets and simply say bullshit and show me the documentation. If you can't provide to a properly screened judge the reason why it is a state secret then the government should not be able to do it.

It's time for the lies to stop and the government and its agents held accountable for their actions.

I agree. Put the judge under a gag order if you have to, it's a complete conflict of interest to put the decision about what is and isn't a state secret in the hands of the people whose allegedly illegal spying is being challenged.

There has to be some way for the courts to look at the invocation of state secrets and simply say bullshit and show me the documentation. If you can't provide to a properly screened judge the reason why it is a state secret then the government should not be able to do it.

It's time for the lies to stop and the government and its agents held accountable for their actions.

I agree. Put the judge under a gag order if you have to, it's a complete conflict of interest to put the decision about what is and isn't a state secret in the hands of the people whose allegedly illegal spying is being challenged.

Of course, they'll argue that state secrets are safest when minimizing the exposure, ignoring the fact that there are a million people in the US with top secret clearance.

The government's attempt to block true judicial review of its mass, untargeted collection of content and metadata by pretending that the basic facts about how the spying affects the American people are still secret is both outrageous and disappointing."

Funny, when one considers 60 minutes is doing their questions about Snowden to Condalica Rice, and she's arguing Snowden should come home and "face justice". I'm thinking no one heavily involved in this mess is ready for justice.

The executive and legislative branches would do away with the judicial branch altogether if they could.

This whole mess is a travesty and I believe that this is a clear case of the industrial military complex aplied to technology. Sell hardware, software, and keep high dollar contracts going. America should not stand for secret courts or any of this: It goes against the core of what is supposed to make this country great. Instead we are watching our government become what I was taught to fear by our public school system and what our grandparents fought to prevent in Europe. All of this for an exaggerated threat of terrorism. Your odds of being the victim of terrorism are as bad as your odds of winning the power ball or of being struck by lightning four times during your life. Why should we allow this for such a small risk? They can't prevent anything anyway,the record already clearly shows that.

No govt accountability in sight. No channel for an ordinary citizen to appeal. What happens when govt loses its credibility? I think the US govt has had an increasing credibility problem for quite a while but it seems to be reaching a critical point that they are no longer in control of.

The govt was doing better when they had us convinced our team (repub or demo) was right and the other was wrong.

It seems to me that the State's Secrets duck & cover ruse by Clapper and those that support him, is now as big a leading indicator for his future as Executive Privledge was for Nixon and those that supported him. These folks need to visit federal prison (not just resign with a note of thanks and gratitude as will probably happen.)

Seems to me, that there are at least two Presidents and swaths of officials who should be brought up on Federal Charges and sent to federal prison.

Seems to me that there is a law, granting retroactive immunity to telecon honchos for their complicity in warrantless wiretapping, which somehow doesn't square with the precepts of the 4th amendment. If so, it needs to be invalidated, and the honchos need to go to federal prison.

By the way, Clapper is 72 freaking years old, why hasn't he retired? He's beginning to take on J. Edgar Hoover dimensions for longevity.

(What the hell is it with these NSA toadies who find Snowden so threatening?)

It seems that a lot of them have military backgrounds, so I'd say it's probably the disruption of the chain of command that tends to really get them bothered.

But in a RICO type organization (which NSA seems more and more akin to than a government branch performing a valid and worthwhile public service), when the Don goes down, everybody has advancement potential ...

Of course, in a RICO type organization, advancement potential also comes from growth, an ever expanding surveillance web in this case...

What really amazes me is how people are willing to call him a coward but also at the same time want him to release info.

In the game he is playing, it could be 10 years from now before the brakes in his car fail, or he takes a needle behind the ear, or some other form of spook sanctioned death.

There have even been a few .gov types who mentioned that they would love to put him on a kill list. Personally, I think he should just go on releasing secrets. It's quite obvious the .gov is hiding more than what we already know. So what is their biggest fear? Some program that makes Prism look like a childs toy? Who knows. But I would like to find out.

If snowden had any guts he would've been a whistleblower while being in the states, and not run to give secrets to foreign countries. Hero my ass. He's coward the cowardly chicken.

Seems we've got a shill here.

Probably the NSA. They are covering forums like this now that they have been kicked out of WOW.

Though I am a Canadian, I speak with a number of current and retired US vets on a daily basis. For the most part, they believe that Snowden is a hero, protecting the Constitution of the United States of America. This is the same document that US Forces are sworn to uphold, not the government.

Though I am a Canadian, I speak with a number of current and retired US vets on a daily basis. For the most part, they believe that Snowden is a hero, protecting the Constitution of the United States of America. This is the same document that US Forces are sworn to uphold, not the government.

It seems to me that anyone that works for the USA gov, by default, agree to follow our Constitution and to obey all that it enshrines.

I don't understand how people continue to confuse "documents provided to the press for release to the public" with "giving/selling information to foreign governments for his own personal gain".

They're really quite different concepts.

That's just the blatant propaganda bleeding through and spreading. While it may be obvious to those who follow the facts that this is ridiculous not everybody really takes the time to understand what is going on around them, it is easier to sow doubt and misinformation in their minds

2014 will be the year of privacy. Sites like DuckDuckGo, Ravetree, and HushMail will gain in prominence as more people demand greater privacy. We may not be able to do anything about the NSA spying on us, but we do have a choice when it comes to using sites like facebook and google (i.e., companies that have terrible privacy).

If snowden had any guts he would've been a whistleblower while being in the states, and not run to give secrets to foreign countries. Hero my ass. He's coward the cowardly chicken.

Seems we've got a shill here.

Probably the NSA. They are covering forums like this now that they have been kicked out of WOW.

Though I am a Canadian, I speak with a number of current and retired US vets on a daily basis. For the most part, they believe that Snowden is a hero, protecting the Constitution of the United States of America. This is the same document that US Forces are sworn to uphold, not the government.

Now there's an Idea: A massive passive protest within the armed forces with each individual simply stating: "Sir, I can no longer follow the orders passed down to me from our Civilian Leadership, as it is contrary to the oath I took to uphold the Constitution."

Would never work, there's too many military personnel who are socioeconomically programed (incidentally, the people in favor of the NSA in this thread are more likely this than shills) to think this idea is Anathema, but it sure would be an interesting day...

2014 will be the year of privacy. Sites like DuckDuckGo, Ravetree, and HushMail will gain in prominence as more people demand greater privacy. We may not be able to do anything about the NSA spying on us, but we do have a choice when it comes to using sites like facebook and google (i.e., companies that have terrible privacy).

Course it is. They also sell a personal "Cloud" as well. E-mail is a harder nut to crack for obvious reasons.

I'd like to think that people will keep being worried about this and fight for their privacy, but I suspect the government/military complex will let a few "attacks" get through and then claim they couldn't stop the tragedies because they were trying to scale back in light of privacy concerns.

When mothers are screaming about their children being dead 24/7 on the 24/7 news networks and politicians ramp up their arguments for why "a little lost privacy is an okay exchange for SO MUCH MORE SECURITY," you'll see people slowly accept the way things are.

This has happened before. It will happen again. Count on the fact that PRISM ought to have been called Pandora's box and there ain't no way these people are giving up the power they've managed to build up now that they have it.

See? The irony is they HAVE to have it because it exists and since THEY can have it, well then The Others could have it, too, so that proves why THEY must have it. Because if THEY could have it, then who's to say that The Others don't have it right now, too? Or intend to in the near future? Even though maybe THEY shouldn't have had it to start with, now they MUST have it. Else... we'll all be in danger.

Right? RIGHT? Strength for the NSA is strength for the USA. Strength for the USA is strength for the Constitution. Strength for the Constitution is strength for the people who live by it. Thus, the NSA is strength for the people they supposedly protect.

Try changing the mind of a true believer that these mental gymnastics they've performed to get to the point where they took a dump on the Constitution and remembered it as polishing. I doubt you'll find much success.